Citation Nr: 9917571
Decision Date: 06/25/99 Archive Date: 07/07/99
DOCKET NO. 95-15 848 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
(The claim of service connection for the cause of the
veteran's death, brought by the veteran's mother, is the
subject of a separate decision under the same docket number.)
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1978 to
February 1980. He died in April 1993, and the appellant is
the custodian of his children.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of the Oakland,
California, Department of Veterans Affairs (VA) Regional
Office (RO).
The issue of entitlement to service connection for a
psychiatric disorder, for purposes of accrued benefits was
added to the Supplemental Statement of the Case, issued in
December 1997. The appellant did not respond to the
Supplemental Statement of the Case or submit a VA 1-9 with
respect to the issue. The Board does not have jurisdiction
of an issue in the absence of a substantive appeal. Thus,
the issue of entitlement to service connection for a
psychiatric disorder, for purposes of accrued benefits, is
not before the Board.
FINDING OF FACT
The claim for service connection for the cause of the
veteran's death is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.
CONCLUSION OF LAW
The appellant has not submitted a well-grounded claim for
service connection for the cause of the veteran's death. 38
U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Criteria
Pursuant to 38 C.F.R. § 3.302(2), "[t]he act of suicide . .
. is considered to be evidence of mental unsoundness."
Accordingly, in deciding the claim for service connection for
the cause of the veteran's death, the Board must consider
whether the disability that caused the veteran's death, that
is, mental unsoundness, may be service-connected. Service
connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In addition, service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d). Finally, service connection
can be established by presumption for certain diseases (such
as psychoses) manifest to a degree of 10 percent or more
within one year after service. 38 U.S.C.A. §§ 1101, 1112; 38
C.F.R. §§ 3.307, 3.309.
The initial question which must be answered in this case is
whether the appellant has presented a well-grounded claim for
service connection. In this regard, the appellant has "the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well-
grounded;" that is, the claim must be plausible and capable
of substantiation. See 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).
The three elements of a "well-grounded" claim for service
connection are:
(1) evidence of a current disability as provided by a medical
diagnosis;
(2) evidence of incurrence or aggravation of a disease or
injury in service as provided by either lay or medical
evidence, as the situation dictates; and,
(3) a nexus, or link, between the in-service disease or
injury and the current disability as provided by competent
medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506
(1995); see also 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
Dependency and indemnity compensation may be awarded to a
veteran's spouse, children, or parents for death resulting
from a service-connected or compensable disability. 38
U.S.C.A. § 1310; 38 C.F.R. § 3.312.
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disability
incurred in or aggravated by service was either the principal
cause of death or a contributory cause of death. A well-
grounded claim for service connection for the cause of the
veteran's death due to suicide, therefore, is one which
justifies a belief by a fair and impartial individual that it
is plausible that the veteran's mental unsoundness resulted
from a disability incurred in or aggravated by service.
Where the determinative issue involves medical causation or a
medical diagnosis, competent medical evidence to the effect
that the claim is "plausible" or "possible" is required in
order for the claim to be well-grounded. LeShore v. Brown, 8
Vet. App. 406, 408 (1995); Grottveit, 5 Vet. App. at 93.
When, after consideration of all of the evidence and material
of record in an appropriate case before VA, there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3
(1998).
Factual Background
According to the death certificate, the veteran died on
April [redacted], 1993, as the result of suicide by hanging. No
contributing cause of death was noted. At the time of his
death, he had not established service connection for any
disability.
The service medical records are silent for any evidence of a
chronic psychiatric disorder or hepatitis. Enlistment
examination in September 1978 showed a tattoo on the left
arm. Separation examination in February 1980 showed tattoos
on the right upper arm and shoulder. The records indicate
that the veteran was treated for barbiturate (Valium)
dependence in 1979.
The first evidence of a psychiatric disorder is a private
therapist's note in January 1988 in which the veteran
reported a history of sexual abuse during childhood and
having intrusive thoughts about this abuse for the past 4
years. He also reported depression with suicidal thoughts
and ideation. The diagnoses were major depression and PTSD.
In February-March 1988, the veteran was hospitalized for
treatment of major depression and polysubstance (drug and
alcohol) abuse including intravenous cocaine abuse. He
reported that he started using drugs at age 9. Physical
examination revealed a history of hepatitis. He was also
diagnosed with a dependent personality. Subsequent medical
records show that he continued to receive treatment for
psychiatric problems including suicidal thoughts and
substance abuse. He was hospitalized in February 1993 due to
suicide attempt by hanging. His history of psychiatric
problems was noted. It was noted that just prior to the
attempt he had an argument with a family member. A past
medical history of hepatitis A, B and C was recorded. The
veteran subsequently succeeded in committing suicide in April
1993 by hanging after ingesting multiple drugs.
Analysis
After a thorough review of the veteran's claim file, the
Board finds that there is no competent medical evidence of
record that in any way links the veteran's mental unsoundness
to any inservice disease or injury. Because she is not a
physician, the appellant's statements are not competent to
establish that the veteran incurred a psychiatric disorder
during his active service, or that the acts causing his death
were causally related to any inservice disease or injury.
See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (lay
testimony is not competent to provide a medical diagnosis).
The veteran's service medical records do not show a
psychiatric disorder while in service. Although the veteran
received psychiatric treatment in January 1988, approximately
8 years after his discharge from service, these records do
not refer to his military service. Thus, the appellant has
failed to show the required nexus between the mental
unsoundness which resulted in the veteran's death, and any
inservice disease or injury. See Caluza, 7 Vet. App. at 506.
In addition, no competent medical evidence has been presented
establishing that the veteran contracted hepatitis in service
or that knowledge of this contributed to his death.
Accordingly, the Board finds no evidence of a plausible
claim. Since the appellant has not met her burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well-grounded, it
must be denied.
Given the appellant's failure to submit a well-grounded
claim, the Board need not reach the benefit of the doubt
doctrine. 38 U.S.C.A. § 5107.
Where the claimant has failed to submit a well-grounded
claim, the VA does not have a statutory duty to assist the
claimant in developing facts pertinent to the claim.
38 U.S.C.A. § 5107(a).
However, VA may be obligated under 38 U.S.C.A. § 5103(a) to
advise a claimant of evidence needed to complete the
application. This obligation depends upon the particular
facts of the case and the extent to which the Secretary of
the VA has advised the claimant of the evidence necessary to
be submitted with a VA benefits claim. Robinette v. Brown, 8
Vet. App. 69 (1995).
In this case, the RO fulfilled its obligation under § 5103(a)
in the April 1995 statement of the case and in the December
1997 and July 1998 supplemental statements of the case in
which the appellant was informed that the reason for the
denial of the claim was because competent medical evidence
had not been produced establishing a causal relationship
between the veteran's military service and his suicide.
Furthermore, by this decision, the Board is informing the
appellant of the evidence which is lacking and that is
necessary to make the claim well-grounded.
ORDER
The appellant not having submitted a well grounded claim of
entitlement to service connection for the cause of the
veteran's death, the appeal is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals